PEGGY SYKES v. SPURLOCK CURE AND PHYLLIS CURE
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RENDERED: June 17, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000908-MR
PEGGY SYKES
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
CIVIL ACTION NO. 99-CI-01357
v.
SPURLOCK CURE AND
PHYLLIS CURE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
Peggy Sykes appeals from an April 6,
2004, Pike Circuit Court judgment containing findings of fact
and conclusions of law.
The case involves a boundary dispute
between Sykes and her neighbors, Spurlock and Phyllis Cure.2
We
are asked to determine whether the court erred when it treated
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Appellees’ brief states that Spurlock Cure recently died.
an untimely Kentucky Rules of Civil Procedure (CR) 59.05 motion
made by the Cures as a motion made pursuant to CR 60.02 and
granted the extraordinary relief available under that rule.
We
are also asked to determine whether the circuit court’s findings
of fact of April 6, 2004, are clearly erroneous and whether the
court erred in awarding costs to the appellees in the second
judgment.
Because we find that the trial court erred in
granting relief pursuant to CR 60.02, we vacate the April 6,
2004, judgment and remand with instructions to reinstate the
August 5, 2002, judgment.
On January 17, 2002, a bench trial was held to
determine the boundary line between the Sykes and Cure
properties.
The trial court granted judgment in favor of Sykes
on August 5, 2002.
The record contains the original judgment on
which the clerk of the circuit court certified that a copy of
the judgment had been mailed to “all parties and/or attorneys of
record” on August 5, 2002.
About four months later, on December 13, 2002, the
Cures filed a “motion to alter, amend, or vacate or for
additional findings and to be permitted out of time challenge to
judgment.”
This motion was clearly filed far beyond the ten day
period permitted under CR 59.05.3
The Cures claimed that they
had only learned of the entry of the final judgment on December
3
Ky. R. Civ. Proc. (CR) 59.05 requires that the motion “shall be served not
later than 10 days after entry of the final judgment.”
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6, 2002.
They explained that “[t]he Clerk never sent the same
[the final judgment] to counsel for the Plaintiffs nor to the
Plaintiffs and the Plaintiffs nor their attorney had any
knowledge of the entry of the Judgment.”
Sykes filed a response to the motion, stating that her
attorney had received a timely copy of the judgment in the mail,
and arguing that the court did not have jurisdiction to alter,
amend or vacate the judgment.
The circuit court held a hearing
into the matter on January 17, 2003, at which the attorneys for
both sides presented their arguments on the motion.
On April 6, 2004, almost two years after the entry of
the original judgment, new “findings of fact, conclusions of
law[,] order and judgment” were entered in which the court
stated that it
believes that Plaintiffs [sic] attorney did
not receive notice of the entry of the
August 2002 judgment. Pursuant to this
finding of fact, It [sic] is hereby ORDERED
by the Court that the Plaintiffs will be
allowed to challenge that judgment pursuant
to C.R.60.01, C.R. 60.02 and Kurtsinger v.
Board of Trustees of Kentucky Retirement
Systems.4
The court then proceeded to reverse its earlier
judgment regarding the location of the boundary line and ruled
instead in favor of the Cures.
The court also reversed its
earlier order that the Cures pay Sykes’ costs and instead
4
90 S.W.3d 454 (2002).
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ordered that the Cures were to recover their costs from Sykes.
This appeal followed.
It is well-established that “because of the
desirability of according finality to judgments, this clause [CR
60.02(f)] must be invoked only with extreme caution, and only
under most unusual circumstances.”5
As authority for its action in granting relief under
CR 60.02, the circuit court relied on Kurtsinger v. Board of
Trustees of Kentucky Retirement Systems.6
In that case, the
circuit court had granted summary judgment to the Board.
Kurtsinger timely filed a CR 59.05 motion.
The motion was
denied, but the notice of entry of the order was not sent to
Kurtsinger or his attorney.
Several weeks later, Kurtsinger’s
attorney discovered that the judgment had been entered.
He
immediately filed a motion pursuant to CR 60.02, requesting the
trial court to vacate the order and enter a new order ruling on
the CR 59.05 motion.
A hearing was held into the matter and the
judge concluded that his office had made a mistake in not
including Kurtsinger on the distribution list of the order.
court therefore granted the CR 60.02 motion on the basis of
“mistake, inadvertence, excusable neglect and reasons of an
5
Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky. 1959).
6
Supra, note 4.
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The
extraordinary nature justifying relief.”7
It vacated the earlier
order and then entered a new order denying the CR 59.05 motion.
This enabled Kurtsinger to file a timely appeal from the summary
judgment that had become final by virtue of the order denying
the CR 59.05 motion.
The trial judge in Kurtsinger justified the granting
of the CR 60.02 motion as follows:
It is our mistake. This is not a situation
where there’s at least an argument that it
went out to them and they are saying that
they did not receive it or something like
that. I looked at the order after they
filed this and this was typed in our office
and the distribution was not put on it to
them. So I know it did not go to them and I
don’t think it would be fair to hold them at
this point in time. Justice requires a
little bit more than that. (Emphasis
supplied.)8
In affirming the circuit court’s decision, the Supreme
Court noted that the order vacating “was accompanied by findings
that the trial court or its staff was at fault for Appellants’
[Kurtsinger’s] failure to learn of entry of the order.”9
The present case is distinguishable.
Although the
circuit court made a “finding of fact” that the Cures’ attorney
had not received the first judgment, there was no evidence
7
The court was relying on CR 60.02(a), which permits a court to grant relief
on the grounds of “mistake, inadvertence, surprise or excusable neglect”, and
CR 60.02(f), for “any other reason of an extraordinary nature justifying
relief.”
8
Supra, note 4, at 455, n. 1.
9
Id. at 457.
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underlying this finding, beyond an unsworn statement of the
attorney.
There was no affidavit or sworn testimony from the
attorney or any member of his office staff stating that notice
of entry of the judgment had not been received.
Under CR 43.12,
[w]hen a motion is based on facts not
appearing of record the court may hear the
matter on affidavits presented by the
respective parties, but the court may direct
that the matter be heard wholly or partly on
oral testimony or depositions.
The appellees argue that “[n]either an officer of the
Court nor attorneys need be sworn for a court to rely upon his
or her word,” and have drawn our attention to Supreme Court Rule
8.3(c) which states that it is professional misconduct for an
attorney to “[e]ngage in conduct involving dishonesty, fraud,
deceit or misrepresentation;” and to Rule 3.3(a)(1) of the
Kentucky Rules of Professional Conduct which states that “[a]
lawyer shall not knowingly: . . . Make a false statement of
material fact or law to a tribunal.”
But the Cures’ attorney was not merely making a
representation to the court; he was presenting evidence.
Yet
this evidence was not subject to cross-examination and it was
unsworn.
Such statements are not converted into evidence by
virtue of being the representations of an attorney.
Such
statements cannot form the evidentiary basis for a finding of
fact.
In other words, there was no adequate factual basis for
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setting aside the prior judgment.
In Kurtsinger, by contrast,
the judge took judicial notice10 that the judgment had not been
served; and it was obvious on the face of the record that the
judgment had not been served.
We agree with Sykes that the
unsworn assertions of the appellees’ attorney are simply not
enough to justify vacating a judgment.
In an analogous criminal case, McMurray v.
Commonwealth,11 this Court held that it was improper for a
circuit court to amend a defendant’s sentence pursuant to CR
60.02 on the basis of statements made in a letter from a
probation officer.
We explained that “[t]he only proper
procedure available for the trial court to vacate or amend the
earlier judgment would have been as a result of a hearing had on
the basis of the Commonwealth filing a CR 60.02 judgment
procured by fraud motion, supported by sufficient affidavit[.]”12
The letter from the probation officer was inadequate because it
was “unverified . . . and not supported by affidavit as required
by CR 43.12.”13
10
See Ky. R. Evid. (KRE) 201(2).
11
682 S.W.2d 794 (Ky.App. 1985).
12
Id. at 795 (Emphasis supplied).
13
Id.
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For the foregoing reasons, the April 6, 2004, judgment
is vacated and this case is remanded to Pike Circuit Court with
directions to reinstate the August 5, 2002, judgment.
JOHNSON, JUDGE, CONCURS.
BARBER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BARBER, JUDGE, DISSENTING:
I respectfully dissent.
Rule 60.02 is the method our courts use to avoid manifest
injustice.
I believe the trial court should have deference to
factually determine if a party receives a pleading, and that
finding should not be disturbed on appeal unless clearly
erroneous.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph W. Justice
Della M. Justice
Pikeville, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
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